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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11727
Non-Argument Calendar
________________________
D.C. Docket Nos. 5:14-cv-00301-WTH-PRL;
5:13-cr-00020-WTH-PRL-1
LUCIEN FRANK SOBOLEWSKI,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 2, 2016)
Before TJOFLAT, HULL and JILL PRYOR, Circuit Judges.
PER CURIAM:
Lucien Frank Sobolewski appeals the district courts denial of his 28 U.S.C.
2255 motion to vacate, set aside, or correct his sentence. Following a jury trial,

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Sobolewski was convicted of being an unlawful user of a controlled substance in

possession of a firearm, in violation of 18 U.S.C. 922(g)(3) and 924(a)(2). On
appeal, Sobolewski argues that the district court erred in rejecting his claim that
trial counsel rendered ineffective assistance by failing to introduce at trial certain
evidence suggesting that he was not an unlawful user of a controlled substance. 1
After careful review of the record and briefs, we affirm.
I.
A.

BACKGROUND

Offense Conduct
On February 6, 2013, Zachary Nichols, a law enforcement officer with the

United States Forest Service (USFS), pulled over Sobolewskis truck in Ocala
National Forest after observing that the driver, Sobolewski, and his passenger,
Charlie McIntyre, were not wearing seatbelts. Officer Nichols asked Sobolewski
whether he had anything illegal in his truck. Sobolewski responded that he had a
gun and a concealed weapons permit. Sobolewski showed the concealed weapons
permit to Officer Nichols.
Officer Nichols then asked Sobolewski if he had any open containers or
illegal substances in the truck. Sobolewski initially responded that he did not, but
after Officer Nichols requested to search the truck, Sobolewski voluntarily
1

In a 28 U.S.C. 2255 proceeding, we review a district courts legal conclusions de novo

and factual findings for clear error. Devine v. United States, 520 F.3d 1286, 1287 (11th Cir.
2008). A claim of ineffective assistance of counsel is a mixed question of law and fact that we
review de novo. Id.
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admitted that he had marijuana in the glove box. Officer Nichols searched the
glove box and found a plastic baggie containing 6.8 grams of marijuana. Officer
Nichols also found rolling papers next to the drivers seat, a gun behind the
drivers seat, two bullets attached to the guns holster, and three bullet casings in
the drivers side cup holder.
After the search, Everett Bane, another law enforcement officer with the
USFS, asked Sobolewski what he and McIntyre had been doing before the traffic
stop. Sobolewski answered that they had been shooting at the shooting range.
Officer Bane then asked whether they had smoked any marijuana that day.
Sobolewski responded that they had smoked some marijuana earlier that day. The
officers seized the marijuana and eventually let Sobolewski go free.
B.

Indictment, Arrest, Drug Test, and Competency Hearing

On March 20, 2013, 42 days after the traffic stop, a federal grand jury

returned a single-count indictment charging Sobolewski with being an unlawful

user of a controlled substance in possession of a firearm, in violation of 18 U.S.C.
922(g)(3) and 924(a)(2). On April 18, 2013, Sobolewski was arrested.
Sobolewskis trial counsel advised Sobolewski to obtain an independent drug test.
On May 1, 2013, 84 days after the traffic stop, Sobolewski obtained that
independent drug test, which returned a negative result for the presence of drugs
in his urine. Sobolewski provided trial counsel with the results of his drug test.
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In August 2013, Sobolewski and his trial counsel executed a written plea
agreement whereby Sobolewski pleaded guilty to the one count in the indictment.
In September 2013, Sobolewskis trial counsel filed an unopposed motion to
determine Sobolewskis mental competency prior to the entry of the written plea
agreement. Trial counsel alleged that Sobolewski had a cyst in his brain, was
being treating by a therapist, and had previously suffered head trauma in a
December 2012 motorcycle accident. Trial counsel also alleged that Sobolewskis
primary physician and his therapist were both concerned about Sobolewskis
ability to understand the proceedings.
The district court granted the competency motion and ordered Sobolewski
to undergo a psychiatric examination. On September 17, 2013, Dr. Almari Ginory,
an Assistant Professor of Forensic Psychiatry at the University of Florida,
examined Sobolewski. Sobolewski told Dr. Ginory that he had previously used
marijuana on a few isolated occasions, but was not a habitual marijuana user with
symptoms of withdrawal or tolerance. Sobolewski told Dr. Ginory that he last
used marijuana the night before his arrest in order to help him sleep.
In her written report, Dr. Ginory cited to the definition of substance abuse
found in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition,
text revision (DSM IV-TR), and stated:
According to the DSM IV-TR, substance abuse is defined as a
maladaptive pattern of substance use which leads to impairment or
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distress as manifested by at least one of the following symptoms.

Recurrent use resulting in a failure to fulfill major obligations,
recurrent use in situations where it is physically hazardous, recurrent
legal problems, and/or continued use despite recurrent interpersonal
problems caused by the effects of the substance.
Dr. Ginory opined that Sobolewski does not meet criteria for cannabis abuse as he
does not have recurrent impairment due to substance use. Dr. Ginory also opined
that Sobolewski was mentally competent to stand trial.
Based on Dr. Ginorys report, the district court found that Sobolewski was
mentally competent to stand trial. Sobolewski informed the court that he wished to
proceed to trial.
C.

Trial and Evidence of Prior Drug Use

At trial, Officers Nichols and Bane offered testimony describing the

February 6, 2013 stop and search of Sobolewskis truck. The government then
called three witnesses to testify about Sobolewskis history of marijuana use.
Courtney McCrae, a special agent with the USFS, testified that he conducted
an interview with Sobolewski and McIntyre immediately after the officers
searched Sobolewskis truck. During the interview, Sobolewski admitted that he
began using marijuana because of relationship problems with his fiance.
Sobolewski also executed a written affidavit after the interview. In the affidavit,
Sobolewski testified that he had been smoking marijuana off and on since he was
19 years old. Sobolewski further testified that he had been using marijuana more
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recently as a form of self-medication to alleviate headaches that developed after his

December 2012 motorcycle accident. Sobolewski admitted that he smoked
marijuana the day before and the day of the offense.
McIntyre testified that he first met Sobolewski in December 2012. McIntyre
testified that over the course of two or three weeks he saw Sobolewski use
marijuana [m]aybe every other day, and that Sobolewski would replace the bag
of marijuana in his glove box [m]aybe every other day. McIntyre also testified
that Sobolewski would frequently give marijuana to McIntyres sister, Angelina
McIntyre, and she and Sobolewski would smoke it together.
Angelina McIntyre testified that she first met Sobolewski in October 2012
and eventually began working for him in late December 2012. She testified that
from late December 2012 until Sobolewskis arrest in April 2013, she and
Sobolewski went into the woods every day after work to smoke marijuana
together. Sobolewski always provided the marijuana.
Sobolewski called two witnesses to testify in his defense. Crystal Colbert,
the mother of Sobolewskis niece, testified that she had known Sobolewski for
three years and had interacted with him on a regular basis during that time.
Colbert testified that she went into the woods with Angelina McIntyre and
Sobolewski on at least 10 occasions. According to Colbert, on those occasions,
she and Angelina McIntyre would smoke marijuana, but Sobolewski would not.
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Colbert further testified that she had never seen Sobolewski smoke marijuana in
the three years that she had known him.
George Asbate testified that he knew both Charles McIntyre and
Sobolewski, but had not been friends with Sobolewski since 2011. Asbate testified
that he spoke to Charles McIntyre in December 2013 to discuss the investigation
that ensued after the February 2013 search of Sobolewskis truck. Asbate testified
that Charles McIntyre told him that he had never seen Sobolewski consume
marijuana.
Sobolewskis trial counsel did not call Dr. Ginory to testify, nor did counsel
attempt to introduce into evidence Dr. Ginorys psychiatric evaluation report.
Sobolewskis trial counsel also did not introduce into evidence Sobolewskis
negative post-arrest drug test.
Prior to deliberations, the district court instructed the jury that Sobolewski
was charged with being an unlawful user of a controlled substance in possession
of a firearm. The district court further instructed that an unlawful user of a
controlled substance meant a person who, at the time he possessed or received a
firearm or ammunition, was actively and regularly engaged in the ongoing use of a
controlled substance or substances over a period of time that is sufficient to
establish a pattern of conduct as distinguished from isolated and disconnected
usages.
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The jury found Sobolewski guilty of the one count charged in the
indictment. In April 2014, the district court sentenced Sobolewski to serve a year
and a day in prison. Sobolewski did not appeal his conviction or sentence.
D.

Section 2255 Motion to Vacate

In May 2014, Sobolewski filed a motion to vacate, set aside, or correct his

sentence under 28 U.S.C. 2255. Sobolewski alleged, inter alia, that his trial
counsel was ineffective for failing to introduce as evidence at trial:
(1) Dr. Ginorys opinion that Sobolewski did not meet the criteria for cannabis
abuse, and (2) Sobolewskis negative post-arrest drug test. Sobolewski contended
that this evidence would have bolstered his argument at trial that he was not an
unlawful user of marijuana under 18 U.S.C. 922(g)(3), as it tended to show
that he was not actively and regularly engaged in the ongoing use of a controlled
substance. He alleged that counsels failure to introduce the evidence at trial
constituted deficient performance resulting in prejudice.
The district court denied Sobolewskis 2255 motion. This appeal
followed.
II.

DISCUSSION

Under 18 U.S.C. 922(g)(3), it is unlawful for any person who is an

unlawful user of or addicted to any controlled substance to possess a firearm.
18 U.S.C. 922(g)(3) (emphasis added). The term unlawful user is not defined
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in the statute. However, in the context of interpreting a sentencing enhancement

under the United States Sentencing Guidelines, this Court has defined the term
unlawful user, as used in 922(g)(3), as a person whose drug use is regular,
ongoing, and contemporaneous with his firearm possession. United States v.
Edmonds, 348 F.3d 950, 953-54 (11th Cir. 2003).
We evaluate claims of ineffective assistance of counsel under the two-prong
test set forth in Strickland.2 Hunt v. Commr, Ala. Dept of Corr., 666 F.3d 708,
721 (11th Cir. 2012). To establish constitutionally ineffective assistance of
counsel, a defendant must show that (1) his attorneys performance was deficient
and (2) the deficient performance prejudiced the defendant. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).
Under the prejudice prong of Strickland, the defendant must show a
reasonable probability that, but for counsels unprofessional errors, the result of
the proceeding would have been different. Osley v. United States, 751 F.3d 1214,
1222 (11th Cir. 2014) (quotation marks omitted). A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id. (quotation
marks omitted). The defendant must carry his burden on both Strickland prongs to
demonstrate ineffective assistance of counsel. Id.
Here, we need not decide the deficient performance issues because

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

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Sobolewski has failed to show prejudice in any event. See Holladay v. Haley, 209
F.3d 1243, 1248 (11th Cir. 2000) ([T]he court need not address the performance
prong if the defendant cannot meet the prejudice prong.). Dr. Ginorys written
report and potential testimony show only that Sobolewski did not meet the clinical
criteria for marijuana abuse. However, this Court has recognized that the
disjunctive form of 922(g)(3) prohibits either unlawful users of controlled
substances or addicts from possessing firearms. 3 See United States v. Corona, 849
F.2d 562, 562-63 nn.1-2 (11th Cir. 1988). In this case, the indictment only charged
Sobolewski with being an unlawful user of a controlled substance, not an addict.
Consistent with instructive Eleventh Circuit precedent, the district court charged
the jury to determine whether Sobolewski was an unlawful user because he
regularly engaged in the ongoing use of [marijuana]. A diagnosis that
Sobolewski does not meet the clinical criteria for marijuana abuse does not show
that he was not an unlawful user of marijuana. Further, Dr. Ginorys evaluation
occurred on September 17, 2013, which was over seven months after the February
6, 2013 traffic stop. Because 922(g)(3) criminalizes regular drug use that is
3

Federal regulations define the phrase [u]nlawful user of or addicted to any controlled
substance as [a] person who uses a controlled substance and has lost the power of self-control
with reference to the use of the controlled substance; and any person who is a current user of a
controlled substance in a manner other than as prescribed by a licensed physician as evinced by
a recent use or possession of a controlled substance or a pattern of use or possession. See
27 C.F.R. 478.11. The regulations are consistent with and support our holdings in Corona and
Edmonds that being an unlawful user is distinct from being an addict, and only requires proof
of regular and ongoing use of a controlled substance. See Edmonds, 348 F.3d at 953-54; Corona,
849 F.2d at 562-63 nn.1-2.
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contemporaneous with possessing a firearm, the relevant timeframe here is

Sobolewskis unlawful use of marijuana at the time he possessed a firearmwhich
was during the traffic stopnot seven months later. See Edmonds, 348 F.3d at
953-54.
In fact, the government presented evidence that Sobolewski had been
consuming marijuana on a regular basis from December 2012 (the period
surrounding his motorcycle accident) through February 6, 2013 (the date of his
firearm offense conduct). Indeed, Sobolewski admitted that he began using
marijuana again after his motorcycle accident to treat headaches and had smoked
marijuana on the day of the traffic stop and the day before. Additionally, there is
not a reasonable probability that the jury would have reached a different verdict
had it known about the belated negative drug test taken on May 1, 2013.
In sum, Dr. Ginorys expert opinion and Sobolewskis negative drug test
were not probative of whether Sobolewski was an unlawful user of marijuana
during the time he possessed his gun on February 6, 2013. Even if this evidence
was relevant, Sobolewski failed to demonstrate a reasonable probability that the
result of the proceeding would have been different had trial counsel introduced it to
the jury. See Osley, 751 F.3d at 1222. Accordingly, Sobolewski did not satisfy
Stricklands prejudice prong, and we affirm.
AFFIRMED.
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